Mistaking Defeat for Victory?

One of the most compelling features of Daniel Bennett’s recent book, Defending Faith: The Politics of the Christian Conservative Legal Movement, is its timeliness. In the decade since Steven Teles’s groundbreaking The Rise of the Conservative Legal Movement: The Battle for Control of the Law (2008), there have been several books on the legal conservative movement (“LCM”). But all of these books have ignored the religious right—and indeed most forms of social and cultural conservatism—while focusing extensively on the libertarian and economic dimensions of legal conservatism. A reader of these LCM works might be surprised to learn that the first canon of Russell Kirk’s conception of conservatism is that “the conservative believes that there exists an enduring moral order.”

Defending Faith is the first LCM book to consider how Christian conservative legal organizations (“CCLOs”) have sought to preserve Kirk’s first canon of conservatism. The book arrives just as scholars and pundits are developing greater interest in CCLOs, largely due to several controversial Supreme Court church-state decisions over the past few years—most notably Burwell v. Hobby Lobby (2014) and Masterpiece Cakeshop v. Colorado Civil Rights Commission, the baker case that Alliance Defending Freedom (ADF) argued in the Supreme Court in December.

Just before the Masterpiece oral argument, the Nation published a lengthy article (over 7,000 words) on the “Christian Legal Army” behind the case, substantiating the thesis of Bennett’s Defending Faith—that CCLOs are powerful, heavily financed organizations conspiring to transform American law. While there is much to be said in defense of this representation of CCLOs, this perspective fails to consider why there is a Christian legal army in the first place.

Thus, although Defending Faith is a timely and important addition to the rapidly expanding LCM literature, it is a disappointing work overall, principally because it never engages the implications of its thesis: CCLOs are mobilizing to defend faith, but why and from what threat?

Bennett ignores the legal army waging war on the other side—that is, the much wealthier and better-organized liberal legal movement that has been responsible for the radical transformation of American law and culture over the past fifty years. For example, while Bennett looks into CCLO tax filings to show how the organizations together have amassed an impressive $80 million budget, with ADF leading the group by far with $48.3 million, the author fails to mention that the ACLU alone has a budget almost twice that of all the CCLOs put together ($158 million). Bennett likewise omits that liberal legal organizations like the ACLU have been, and continue to be, much more successful than CCLOs.

To understand why CCLOs exist, one must first appreciate the enormous transformation of legal, political, and cultural power over the last half-century. For example, just over fifty years ago, the ACLU was fighting on behalf of a youngdissenter, Ellery Schempp, to banish prayer from public schools. Fast-forward to 2017: The ACLU now works, in tandem with the state, to punish dissenters like Jack Phillips for not baking a cake in accord with the state’s diversity agenda.

In this short period of time, power relations have changed so dramatically that the ACLU has gone from dissenter-protector to dissenter-punisher. Meanwhile, Christian conservatives have, perhaps not unrelatedly, gone from a dominant majority to a dwindling minority. Indeed, in just forty years, America has dropped from 81 percent white and Christian, to a mere 43 percent.

This sense of change and loss, however, is nowhere to be found in Bennett’s book. Bennett casually notes how “contemporary Christian conservatives are unique among conservatives in their ability to embrace a persecuted identity, something usually reserved for political and socialminorities” (p. 78). But Bennett does not consider whether Christian conservatives have developed the persecuted identity of a minority because they now are a persecuted minority. That is, CCLOs are not just defending faith; they are defending faith from something.

Chapter 4 offers one of the most glaring examples of Bennett’s oversight. In this chapter, Bennett divides CCLO advocacy into four chronological frames, as expressed through CCLO press releases. Bennett finds that in the first frame CCLOs made full-throated challenges to same-sex marriage based on moral and traditionalist grounds, with CCLOs claiming that traditional opposite-sex marriage is “the soul of Western civilization.” The second frame involved a narrower argument, using empirical sociological grounds to challenge same-sex marriage as a threat to the interests of children. The third frame was even narrower, declining to take a position on same-sex marriage, but instead charging judicial interventions on the subject as being tinged with the same “judicial activism” that has stained Supreme Court decisions like Dred Scott v. Sanford with “historical infamy.” Finally, the fourth, current, frame accepts that same-sex marriage is a constitutional right, but pleads that religiously motivated businesses and institutions should be exempt from state compulsion to participate in such marriages against their religious beliefs. In this frame, CCLOs have “downplayed opposition to homosexual conduct and instead emphasized religious convictions, connecting the issue with liberties enshrined in the First Amendment” (p. 79).

Based on these four frames, Bennett concludes that the LCM “has made it clear that it will not surrender on the issue of marriage” (p. 83). But where Bennett sees success in persistence, someone else may see steady capitulation. Maybe CCLOs haven’t raised the white flag yet, but the stake is firmly settled.

As evidence of CCLO success, Bennett quotes a CCLO lawyer as claiming that “[i]f the public interest legal movement hadn’t been here, the marriage battle would have been lost long ago” (p. 69). Bennett accepts this boasting without contestation or qualification. The astute reader, however, will wonder how in the world this could be possible. Indeed, it took only a dozen years for same-sex marriage advocates to translate their first state supreme court victory under a state constitution in Goodridge v. Department of Public Health (2003) and turn it into a U.S. Supreme Court victory under the U.S. Constitution in Obergefell v. Hodges (2015). Could the same-sex marriage movement have worked any more quickly than the twelve years between Goodridge and Obergefell?

Because Bennett is unwilling or unable to see these massive CCLO failures, he does not anticipate that the fourth frame may already be passing by, as evidenced in the Masterpiece litigation strategy, with the ADF lawyer arguing for an even narrower path whereby only expressive activities (such as baking a cake) are protected from state compulsion. CCLOs have thus transitioned from defending the sanctity of traditional marriage as being deeply rooted in Western civilization, to pleading on free-speech grounds for bakers like Jack Phillips to be allowed not to make decorative cakes for gay weddings. From protecting the majesty of marriage, expressed in Paul’s Epistle to the Ephesians, to protecting the banality of baking, expressed in Jack’s fondant and frosting.

While some readers may quibble with Bennett’s methodology (such as Bennett’s focus on press releases to examine CCLO legal positions while ignoring more legally relevant material, such as amicus briefs), and others may find the book theoretically deficient (in particular, for failing to account for the larger conservative ideological framework of which CCLOs are a part), the most glaring problem is a defect the book shares with all of the other LCM literature: Defending Faith, just like the other LCM works, implicitly presupposes a natural leftward drift in the law, so that the very existence of CCLOs, and their vanishingly narrow resistance to their increasing irrelevance, is a testament to Christian conservative legal power in twenty-first century America.

This has the effect of playing into the overarching narrative of all the LCM works—that legal conservatives have managed through the Federalist Society and other organizations to mount a “conservative counterrevolution.” This narrative serves the dual role of enabling conservative elites to engage in mutual self-congratulation (and sinecure protection), while enabling liberal elites to reenact the 1960s and tell their voters (and more importantly, their donors) that they are fighting the power (in a nation whose arsenals of power—from media, to entertainment, to academia—liberals control with impunity).

To be clear, none of the foregoing is intended to suggest that Defending Faith is poorly sourced or written. To the contrary, Bennett’s writing is admirably clear and his tone is scholarly and even-handed. But this makes it all the more disappointing that Bennett did not marshal his considerable writing and scholarly talents toward a more thorough and revealing investigation of the role of faith and law in twenty-first century America.

A more accurate account of the Christian conservative legal organizations would find that they have failed—and they have failed miserably—to conserve anything remotely Christian about America. And this is not because they have organized or litigated unwisely; it is because there is no winning the law in a political system in which the culture has already been lost.

Jesse Merriam is an assistant professor of political science at Loyola University Maryland.